U.S. v. Avellino

• Decision Date: 23 April 1998
• Docket Number: No. 309,D,309
• Citation: 136 F.3d 249
• Parties: UNITED STATES of America, Appellee, v. Carmine AVELLINO, Defendant-Appellant. ocket 97-1117.
• Court: U.S. Court of Appeals — Second Circuit

Page 249

136 F.3d 249

UNITED STATES of America, Appellee, v. Carmine AVELLINO, Defendant-Appellant.

No. 309, Docket 97-1117.

United States Court of Appeals, Second Circuit.

Argued Oct. 9, 1997.

Decided Jan. 30, 1998.

Order on Petition for Rehearing April 23, 1998.

Stephen D. Kelly, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Susan Corkery, Assistant United States Attorney, Brooklyn, NY, on the brief), for Appellee.

Jay Goldberg, New York City (Brian D. Linder, Clayman & Rosenberg, New York City, on the brief), for Defendant-Appellant.

Before: KEARSE and CABRANES, Circuit Judges, and CHIN, District Judge. ^*

KEARSE, Circuit Judge:

Defendant Carmine Avellino appeals from a judgment entered in the United States District Court for the Eastern District of New York following his plea of guilty before Frederic Block, Judge, convicting him of conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (1994). The district court sentenced Avellino principally to 126 months' imprisonment, to be followed by a three-year term of supervised release, and ordered him to pay a fine of $60,000, plus the cost of imprisonment and supervised release up to $190,000. After entering his plea of guilty but prior to being sentenced, Avellino moved under Fed.R.Crim.P. 32(e) to withdraw his plea on the ground that he had recently become aware of evidence with which he could have impeached the main witness against him, and that that evidence had been known to the government but had been withheld. The district court denied the motion principally on the ground that the evidence was not material. On appeal, Avellino challenges the denial of his motion. Finding no basis for reversal, we affirm.

I. BACKGROUND

Avellino was one of eight alleged members or associates of the Luchese Crime Family of La Cosa Nostra who were indicted in 1994 by a federal grand jury in the Eastern District of New York and charged with numerous offenses, including racketeering, conspiracy, extortion, and murder. Avellino, charged with eight offenses, initially pleaded not guilty on all counts. The pretrial discovery process began in early 1995. The events during that process are not substantially in dispute.

A. Pretrial Discovery and Avellino's Guilty Plea

In discovery, the government disclosed that the main witness against Avellino would be Alphonso D'Arco, former acting boss of the Luchese Family. D'Arco had entered into a cooperation agreement with the government in 1992, pursuant to which he pleaded guilty to RICO conspiracy and agreed to cooperate with the government. In return, D'Arco and 10 of his relatives or in-laws were accepted into the federal witness protection program and given certain immunities from prosecution, and the government agreed, inter alia, not to seek a sentence for D'Arco of more than 20 years. It also agreed to move pursuant to § 5K1.1 of the Sentencing Guidelines for a downward departure if D'Arco's cooperation proved satisfactory. By the time Avellino was indicted, D'Arco had testified at These materials also revealed, inter alia, that although D'Arco admitted having engaged in drug-related activity for more than a decade prior to his 1983 narcotics conviction, and had admitted at his plea hearing to running the day-to-day activities of the Luchese Crime Family, one of which was the distribution of drugs (Plea Hearing Transcript, United States v. D'Arco, CR-92-0413 (S.D.N.Y. May 15, 1992) ("D'Arco Tr."), at 5, 10, 13), he testified at the prior trials that he personally had ceased drug-related activities in 1982 when he became a member of the Luchese family. For example, D'Arco testified in United States v. Amuso, CR-90-446 (E.D.N.Y. May 26, 1992), and United States v. Giampa, S92-CR-437 (S.D.N.Y. October 26, 1992), that he never dealt in narcotics after becoming a member of the Luchese Crime Family in 1982, and that his 1983 arrest and conviction were for narcotics offenses committed before he became a member; in United States v. Massaro, S1-92-CR-529 (S.D.N.Y. October 6, 1993), he testified that when he engaged in selling drugs, he was not a member of the Luchese family. The materials given to Avellino by the government apparently contained no information directly contradicting D'Arco's denials of personal involvement in selling drugs after he joined the Luchese Crime Family.

several trials and before at least one grand jury. The government provided Avellino with extensive information relating to D'Arco, including transcripts of his testimony at those trials, voluminous records of his interviews with agents of the Federal Bureau of Investigation ("FBI"), records surrendered by D'Arco when he began cooperating with the government, the transcript of D'Arco's plea hearing, and additional information concerning his plea agreement and prior misconduct. The disclosed materials implicated D'Arco in, inter alia, numerous murders, attempted murders, and conspiracies to commit murder, as well as extortion, loansharking, arson, hijacking, counterfeiting, mail and wire fraud, narcotics trafficking, and obstruction of justice. D'Arco had twice been convicted and served terms in prison, once in connection with a scheme involving stolen stock certificates, and once for possession of, and conspiracy to distribute, heroin.

In February 1995, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Avellino made various discovery demands of the government. Asserting, without elaboration, a "good faith belief" that D'Arco had engaged in narcotics activities between 1981 and 1991, when he apparently became a confidential informant, Avellino asked that inquiry be made of the Drug Enforcement Administration ("DEA") and the FBI to determine whether there was any evidence as to such activity by D'Arco. By letter to defense counsel dated April 3, 1995, the government responded that it was unaware of any such evidence. It added, "[i]f you provide the government with the basis for your 'good faith belief' to the contrary, we will investigate the matter further to the extent warranted by any information you provide." (Government's April 3, 1995 letter to counsel for all defendants at 9-10.)

In a July 21, 1995 letter from his attorney Brian D. Linder to Assistant United States Attorney ("AUSA") James Orenstein, Avellino renewed his request, stating that the basis for his "good faith belief" that D'Arco had engaged in narcotics activity after he claimed to have ceased was an October 3, 1991 newspaper article which stated that D'Arco had become a federal informer and which quoted undescribed "sources" as having said that D'Arco had " 'good connections and contacts with Asian heroin merchants,' and 'could be very helpful in that area.' " (Gerry Capeci, "Luchese chief dying to sing for the feds," Daily News, Oct. 3, 1991, at 3.) Avellino's letter requested any evidence tending to substantiate the statements quoted in the article. The government did not produce any evidence in response to this letter, taking the position that a news article attributing the quoted statements to unnamed and undescribed "sources" was insufficient to warrant investigation.

In May 1996, after several months of negotiations among the government and the defendants, Avellino entered into a plea agreement with the government, pursuant to which he agreed to plead guilty to one substantive RICO count, and the government agreed to drop the remaining charges. The plea was part of a "global settlement," with acceptance of Avellino's plea and those of two of his codefendants being somewhat interdependent, and the plea agreements of two Pursuant to his plea agreement, Avellino pleaded guilty on May 29, 1996. Sentencing was set for October.

additional codefendants containing provisions that were contingent on the entry of pleas by Avellino and still other codefendants on or before June 3, 1996.

B. Avellino's Motion To Withdraw His Plea

By motion dated September 30, 1996, Avellino moved pursuant to Fed.R.Crim.P. 32(e) to withdraw his plea of guilty. The basis stated for the motion was that after Avellino entered his guilty plea, his counsel had obtained a document indicating that the government had been aware of, but had failed to disclose, information concerning D'Arco's involvement in narcotics transactions in the period 1989-1991. The document was an Affirmation by New York County Assistant District Attorney Daniel M. McGillycuddy dated October 24, 1991 (the "McGillycuddy Aff."), submitted to the New York State Supreme Court to request an order allowing postponement of the required notice, see N.Y.Crim.Proc.Law § 700.50 (McKinney 1995), to persons whose conversations had been intercepted during court-authorized electronic eavesdropping in a designated block of Prince Street in New York City (the "Prince Street warrant"), in a then-ongoing investigation by the District Attorney's office (the "State investigation").

The Prince Street warrant, issued initially in June 1989 and extended through October 1989 after further findings of probable cause, authorized interception of communications among "Ralph Cuomo, Alfonso [sic ] D'Arco" and several others "relating to the crimes of criminal sale of a controlled substance ... and conspiracy to commit those crimes." (McGillycuddy Aff. p 2.) The State investigation had also led to the issuance, and two extensions, of a warrant authorizing interception of communications in a certain automobile between D'Arco and another, relating to the same narcotics offenses mentioned in the Prince Street warrant. (Id. p 3.) The McGillycuddy Affirmation stated that the District Attorney's Office had been in contact with "federal authorities," with whom D'Arco was cooperating at the time, concerning the federal officials'...